Limitation period for land matters. Does the statute of limitations apply when the rights of the owner were violated during land surveying?

, establishing boundaries of land plots, statute of limitations

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Lawyer, Samara

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Hello!

In your case, submit a motion to refuse to apply the deadline limitation period, since the fact that your rights were violated by land surveying only when a neighbor sued you.

Article 200. Beginning of the limitation period
[Civil Code of the Russian Federation] [Chapter 12] [Article 200]

1. Unless otherwise established by law, the limitation period begins from the day when the person learned or should have learned about the violation of his right and who is the proper defendant in the claim for the protection of this right.

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Lawyer, Yaroslavl

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Hello! Land surveying in itself does not give rise to rights to land plot. Tell me, after the land surveying procedure, did he register the rights to the land plot?

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In this case, all that remains is to insist that the survey results did not violate your rights until a lawsuit was filed, and therefore you previously had no legal basis to protect your rights. Whether or not the court will accept such an argument is, unfortunately, impossible to predict.

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Lawyer

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Hello Madhya!

In 2003, a neighbor demarcated part of my land plot without my consent, although there was a permanent fence, as a result of which, according to the documents, my plot was reduced by 3 acres.
Akhmetshina Madhia

Of course, this phrase immediately suggests the illegality of land surveying, since even in that period, before the Land Code of the Russian Federation came into force (if surveying was carried out before that), coordination of land management work was required.

Here is Article 114 of the RSFSR Land Code, most likely in force at the time of the controversial events:

Article 114. Organization and procedure for land management
The land management process consists of preparatory work, development of forecasts, schemes, land management projects, consideration and approval project documentation, transfer of projects in situ (on the ground), registration and issuance of land management materials and documents, implementation of designer’s supervision over the implementation of land management projects
land owners, landowners, land users and
tenants.
Land management is carried out according to decisions of the Councils of People's Deputies, on the initiative of the RSFSR State Committee for Land Reform and its local bodies or at the request of interested land owners,
landowners, land users, tenants and carried out
state design organizations for land management at the expense of
state budget funds. Development of land management
projects related to territory development, radical improvement and
security land plots from mudflows, landslides, flooding and salinization,
can also be carried out on the initiative of land owners, landowners, land users and tenants at their expense and by other land management organizations.
Land management projects are drawn up with the participation of interested land owners, landowners, land users, tenants and, after approval, are transferred in kind (to the area) with the boundaries of land plots and crop rotation fields marked with established boundary markers.
The organization of the territory established in the order of land management is mandatory for land owners, landowners, land users and
tenants.

Thus, approval was required in any case.

When the land survey took place, I had a foundation on the site; a capital building was later erected on it, and in 2015 a state certificate was received. registration.
Akhmetshina Madhia

This is already strange! Was this foundation not taken into account during land surveying?

You need to clarify this point about the status of the foundation, because a forensic examination will be assigned to your counterclaim. But judging by the fact that

A land survey was carried out, the results of which only confirmed that the neighbor was right.
Akhmetshina Madhia

The boundaries of the site have already been established. It will be very, very difficult to challenge them, because the court does not have the right to give a subjective assessment of the results of the examination; it is precisely on the basis of the expert’s opinion that it draws a conclusion about the legality or illegality of the stated claims. And in this situation, it will be difficult to challenge the land surveying, which has already been proven by examination.

However, if it is proven that during land management work the legal requirements were not met, which was a consequence of a violation of your rights (restoration of the statute of limitations or Article 208 of the Civil Code of the Russian Federation - as your colleagues wrote to you), then it is likely that It will be easier for the court to declare the land survey invalid than to order the demolition of the building (a residential building).

But in general, of course, this is not a simple matter, believe me... You need a lawyer to accompany this process. So consider a specialist to help you navigate the process.

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Grishina Vera Viktorovna, Lawyer, Moscow

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In 2003, a neighbor demarcated part of my land plot without my consent, although there was a permanent fence, as a result of which my plot, according to documents, decreased by 3 acres
Akhmetshina Madhia

in 2015 a state certificate was received. registration
Akhmetshina Madhia

Good evening, Madhya. Taking into account the above facts, you did not and could not know about the land survey carried out by your neighbor, and that it violated your rights, since: a) there was no agreement with you (this should be clear from the documents available in the case file - your signature must not be present on the relevant documents); b) there was a fence and its location remained, presumably, unchanged (if this can somehow be proven as an actual boundary, the established order of use); c) construction was completed and the object passed state registration without any obstacles, therefore, Rosreestr and the State Committee for Taxation either did not have information about other boundaries, or they were not provided to you. From all this it follows that the period for challenging begins to run from the moment the dispute was declared. This, in any case, follows from your description of the situation.

a land survey was carried out, the results of which only confirmed that the neighbor was right
And what should be done in this case?

With regard to the results of the land management examination, it is not entirely clear what it means that it confirmed the neighbor was right. In order to understand what the examination confirmed, you still need to read the expert’s conclusion very carefully. It may be necessary to apply for another examination, or a repeat examination, or an additional one. In general, analyzing a land dispute without documents in hand is a bad idea. Therefore, I agree with my colleague:

You need a lawyer to accompany this process.
Andreeva Tatyana

Land disputes are never simple; without the help of a specialist directly involved in the process, it is very difficult to count on good results.

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Article 28 of the Cadastre Law. Correcting errors in the state real estate cadastre

1. Errors in the state real estate cadastre are:
===
2) reproduced in the state real estate cadastre an error in the document on the basis of which information was entered into the state real estate cadastre(hereinafter referred to as cadastral error in the information).

4.... a cadastral error in the information is subject to correction... on the basis of a court decision that has entered into legal force to correct such an error.

Therefore, you need to demand that erroneous information about the location of the boundaries of your neighbor’s land plot be invalidated and that this information be excluded from the State Property Committee, and also demand that the boundaries of your land plot be established.

You have this right. In accordance with paragraph 2 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights" to claims for rights to real estate applies in particular to claim to establish the boundaries of a land plot.

... when there are intersections (overlaps) of land plots, information about the boundaries of one of which is included in the state real estate cadastre, and the other is subject to clarification, then The applicant’s demands in this case are subject to consideration according to the rules of claim proceedings as a requirement to establish the boundaries of the land plot.”
===
(decision of the Supreme Court of the Russian Federation dated October 7, 2015 in case No. 305-KG15-7535).

The statute of limitations will not apply to such claims. Your property rights are violated by an incorrect description of the boundaries of an adjacent land plot entered into the state real estate cadastre.

In accordance with Art. 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

You can object to the plaintiff and the court regarding the allegedly missed statute of limitations by referring to the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22 “On some issues arising in judicial practice when resolving disputes, related to the protection of property rights and other property rights”

49. By virtue of Article 208 of the Civil Code of the Russian Federation, the limitation period does not apply to the claim of the owner or other possessor to eliminate any violations of his rights, even if these violations were not associated with deprivation of possession. In this regard, the duration of the violation of the right does not prevent the court from satisfying this requirement.

At the same time, your situation is complicated by the fact that the court has already conducted a land management examination not in your favor. However, if you have compelling reasons and evidence that the expert’s conclusions are unreliable, then you have the right to petition the court to order a repeat, additional examination (Article 79 of the Code of Civil Procedure of the Russian Federation). If the court of first instance refuses, then you can conduct independent examination(expert opinion), submit it to the case file, it is possible that the court of second instance will evaluate the expert’s conclusions on which the court decision is based differently.

With respect, Roman.

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Supreme Court issued a ruling regarding questionable documents on a land plot. Now, when making decisions to confiscate lands from citizens that were issued under Soviet power and for which no documents have survived, the courts will have to pay attention to the recommendations of the Judicial Collegium for Civil Cases of the Supreme Court.

The essence of the dispute is that many years ago the village authorities allocated hundreds of dollars to a certain citizen. But no documents about this were preserved in the local government itself, from which, years later, the prosecutor concluded that there were none.

Initial evidence of land

And suddenly the prosecutor went to court with a claim that, in fact, many years ago the allocation of land was not documented. And since there are no documents, it means that the dacha must be confiscated from a bona fide buyer and user and returned to the municipality.

The situation analyzed by the Supreme Court is quite common. In Soviet times, people were given hundreds of acres for carrot beds by a variety of organizations, which then disappeared without a trace along with the archives. And many citizens, over the years of difficult life, often lost not at all stamp leaves with faded seals - the original certificates of land.

Contrary court decisions

As a result, most often in any conflict with the lack of original documents for the land, the end result was a bona fide buyer or simply an honest user of the land.

In court, the prosecutor assured that, as a result of the prosecutor's check, no papers were found in the local administration on the allocation of acres for the defendant's dacha. And he could only provide an old copy of the certificate of land allocation.

This means, the prosecutor concluded, the land was allocated illegally and should be confiscated from the owner. Interestingly, the decree on the transfer of land was made by the predecessors of the current administration in 1993.

The regional court overturned the decision and ordered the land to be given to the municipality. And the appeal declared the old copy of the certificate of land allocation, the original of which was not found by the prosecutor, illegal.

All information about summer cottage in the Unified State Register and the State Cadastre, the regional court ordered its removal. The summer resident did not agree with this decision and went all the way to the Supreme Court. There they checked the case and stated that there was a mistake in resolving the dispute, and it was made by the appeal.

What the Judicial Collegium for Civil Cases of the Supreme Court decided

The Civil Code (Article 302) states that if “property was acquired from a person who did not have the right to alienate it,” and the buyer could not know about it, then the original owner has the right to demand the return of this property from the last owner. Even a conscientious one.

From all that has been said, the Supreme Court concludes that the statute of limitations for “claiming real estate (land plots) that were removed from the possession of local governments against their will” must be counted from the moment when the district administration learned or should have learned that hundreds of them went into the wrong hands.

Therefore, the Judicial Collegium for Civil Cases emphasized, the period of the prosecutor’s inspection or any other period for starting the countdown of the statute of limitations has no legal significance.

Disputes about limitation periods

At the same time, the Supreme Court emphasized, the mere entry in the Unified State Register about the right to real estate or the encumbrance of the right to it does not mean that from the moment the entry was made in the Unified State Register “the person knew or should have known about the violation of the right.”

The main thing in all this is that the beginning of the limitation period for challenging a registered property right by a local government body begins from the day when the body learned or should have learned about the entry in the register and the violation of its right.

According to the Land Code and the law on local self-government bodies, these bodies are charged, among other things, with the responsibility of conducting municipal land control, including control to “prevent unauthorized seizure of land.”

What the appeal did not take into account

The Supreme Court considered that the municipality could have found out about the violation of its rights more than once or twice over the years - during any land inspection, of which there have been many over the years. Or from the day of public hearings on the boundaries of their land.

It is from this time that the statute of limitations of three years should be counted, the Supreme Court emphasized. The appeal did not take this into account, nor did it pay attention to the defendant’s words that the disputed land was registered in the cadastral register back in 2007, at the same time land surveying took place and the boundaries of the site were established.

This means, the Supreme Court concluded, the local authorities should have learned about the violation of their rights to the disputed acres no later than the moment the site was surveyed and the acres were registered in the cadastral register - that is, in the same 2007. But she did not react to this, and the appeal, when considering the dispute, for some reason did not notice this fact.

The decision of the regional court was overturned by the Judicial Collegium for Civil Cases. And she indicated that the appeal verdict must be reviewed in accordance with the explanations given by the Supreme Court.

It is not defined in laws. However, when applied in by-laws and in practice, everyone understands land surveying as establishing precise boundaries between land plots.

Issues of land surveying are considered in laws No. 171-FZ of June 23, 2014.

(“On Amendments to the Land Code”), No. 122-FZ dated July 21, 1997, No. 93-FZ dated June 30, 2006 (“On Amnesty”), No. 221-FZ dated July 24, 2007 (“On the State Cadastre”) . Certain provisions of articles of laws were clarified by Law No. 447-FZ of December 21, 2014.

When to do land surveying

In accordance with the law, currently owning a land plot that has not been surveyed and does not have clearly defined boundaries is not a violation of the law. In 2017, it is allowed to carry out transactions with land plots that are registered in the Unified State Register, but do not have precise boundaries.

For example, the boundaries of such land plots are not indicated on the public cadastral map, and in the table of parameters of such a site there is a note “Without border coordinates.”

However, there is whole line reasons why such a site should undergo land surveying.

These reasons include:

preparing storage units for sale. Most buyers want precise boundaries to be defined for the memory;
division of the land plot into several parts, when the owner bequeaths or donates the land plot to several persons;
claims to part of the site by neighbors. Often you can prove that you are right only by land surveying;
the need to establish boundaries for an abandoned site where there are no markers or a fence left.

In addition, it must be taken into account that starting next year, 2018, no transactions with land plots that do not have precise boundaries obtained through land surveying will be registered.

That is, starting from January 1, 2018, a plot that has not passed the survey cannot be sold or donated.

Carrying out land surveying is a complex process of establishing coordinates on the ground and drawing boundaries. Such work is carried out by specialized organizations or cadastral engineers licensed to carry out such work.

The procedure for performing boundary work is determined by the instructions and methodological instructions(for example, “Recommendations for land surveying” issued by the Federal Social Protection Service on February 17, 2003).

Preparation;
project development;
notification of persons having neighboring plots;
carrying out work on the ground;
drawing up, coordination and approval of a boundary plan.

The period for completing boundary work depends on various factors, including the complexity of the terrain of the land, the presence of buildings on it, weather, and time of year.

One of the important issues is the coordination of the boundaries of land plots with the owners neighboring areas that have a common border with the land plot being surveyed. In this case, the engineer is obliged to inform about the approval at least 30 days before the meeting at which this approval will take place (Article 39 of Law No. 221-FZ). The corresponding invitation must be sent by regular or e-mail at the address that is available in the Unified State Register.

Limitation period for land surveying

Sometimes the owner of a land plot discovers that due to land surveying errors his plot has become smaller. Moreover, the survey, according to which such an error occurred, was carried out some time ago.

In this case, the owner of the plot can go to court and demand that the results of land surveying be canceled.

Despite the fact that such errors did not completely deprive the owner of the right to use, such an appeal is a reason for demanding the elimination of land surveying errors.